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2004 DIGILAW 236 (KAR)

V. B. RAMAKRISHNA v. BANGARAMMA

2004-03-26

K.SREEDHAR RAO

body2004
( 1 ) THE appeal arises out of the common judgment and decrees passed in O. S. No. 628/80 and 872/80. The appellants are the L. Rs of the deceased plaintiff in O. S. No. 628/80 is filed for declaration of title to A and B schedule properties and permanent injunction against defendants No. 1 and 2 from collecting rents from the tenants, who are in occupation of the C schedule properties. Further seek delivery of possession of the C schedule properties with mesne profits for illegal occupation of the C schedule properties. In the alternative the plaintiff seeks declaration that he is the absolute owner of the entire first item of the A schedule property, for partition and possession of half share in item 2 of the A schedule property and also seek share in the B schedule movable properties which includes gold and silver. ( 2 ) THE C schedule properties are the first floor portion of the premises bearing No. 137 and 138, which are shown as item 1 of A schedule. The C schedule properties are let out to the tenants. The item (a) and (b) of the C schedule are part of item 1 of the A schedule. ( 3 ) THE O. S. 872/80 is a counter suit filed by the defendants in O. S. No. 628/80 who are the respondents in the appeals. ( 4 ) FOR convenient discussion, the plaintiff in O. S. No. 628/80 will be referred to as the plaintiff and the 1st defendant will be referred as defendant in this appeal. ( 5 ) THE 1st defendant is the sister of the plaintiff. Defendants 2 to 16 are the tenants. The defendant NO. 17 purchased item no. 2 of A schedule from the 1st defendant during the pendency of the suit. One late Balappa is the propositus and father of the plaintiff and the 1st defendant, Balappa died on 27. 1. 55 before coming into force of the Hindu Succession Act, 1956. The item no. 2 is purchased from CITE in the name of Muniyamma (mother of the plaintiff) in the year 1968. The first item of A schedule property stands in the name of Muniyamma. But the plaintiff contends that A schedule property is acquired from the joint family funds, as such they are joint family property. The item no. 2 is purchased from CITE in the name of Muniyamma (mother of the plaintiff) in the year 1968. The first item of A schedule property stands in the name of Muniyamma. But the plaintiff contends that A schedule property is acquired from the joint family funds, as such they are joint family property. ( 6 ) THE first defendant contends that suit properties are not joint family properties. The items no. 1 and 2 of A schedule property are the self acquired properties of her mother. The item no. 1 of A schedule is purchased in the year 1952 under Ex. P. 36. The item no. 2 of A schedule is purchased from CITB in the year 1968 under Ex. P. 112. Therefore, contends that plaintiff is entitled to half share in item No. 1 of A schedule and C schedule properties u/s 15 of the Hindu Succession Act and has no right in item NO. 2 of the A schedule, which is purchased in the name of the first defendant. The existence of B schedule property is denied. ( 7 ) THE first defendant filed a counter suit against the plaintiff in O. S. No. 872/80 seeking possession of the suit schedule properties in O. S. No. 628/80 and also seek share in the other three house properties. The plaintiff herein takes the defence in O. S. 872/80 that the other three houses are his self-acquired property, maintains that the other items of the suit property are the ancestral properties and pray for dismissal of O. S. No. 872/80. ( 8 ) THE trial court upholds the contention of the defendant that item no. 1 of the A schedule and item no. 1 and 2 of the C schedule are the self-acquired property of Muniyamma purchased under Ex. P. 36. The Item no. 2 of A schedule allotted under Ex. P. 112 is held to be the absolute property of the 1st defendant. The plaintiff is granted half share in item no. 1 of A schedule and item No. 1 and 2 of the C schedule. The claim in respect of the B schedule property and item no. 2 of A schedule is rejected. The plaintiff aggrieved by the judgment and decree has filed the appeal. ( 9 ) MUNIYAMMA during her lifetime had filed a suit in O. S. NO. 1 of A schedule and item No. 1 and 2 of the C schedule. The claim in respect of the B schedule property and item no. 2 of A schedule is rejected. The plaintiff aggrieved by the judgment and decree has filed the appeal. ( 9 ) MUNIYAMMA during her lifetime had filed a suit in O. S. NO. 1804/1966 against the plaintiff herein claiming exclusive title over item 1 of A schedule and for injunction not to collect the rents. The suit was dismissed. The judgment is marked at Ex. P. 37. The counsel for the appellant relying on Ex. P. 37 contends that the exclusive claim of Muniyamma over item 1 of A schedule purchased at Ex. P. 36 is negatived and that the judgment at Ex. P. 37 constitutes resjudicata. Therefore, the first defendant cannot set up a plea in the suit that property purchased under Ex. P. 3 6 is the self acquired property of Muniyamma. In this regard relied on the decision of the Supreme Court in Sulochana Amma Vs. Narayanan Nair AIR 1994, SC 152 In Para 8 the following observations are made:"sri Sukumaran further contended that the remedy of injunction is an equitable relief and in equity, the doctrine of resjudicata cannot be extended, the doctrine of resjudicata cannot be extended to a decree of a Court of limited pecuniary jurisdiction. We find no force in the contention. It is settled law that in a suit for injunction when title is in issue for the purpose of granting injunction, the issue directly and substantially arises in that suit between the parties. When the same issue is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit the decree in the injunction suit equally operates as resjudicata. In this case, when the right and interest of the respondent were questioned in his suit against K, the validity of the settlement deed and the terms thereof were gone into. The civil Court found that K acquired life-estate under the settlement deed executed by his wife conferring vested remainder in the respondent and on its basis the respondent was declared entitled to an injunction against K who was prohibited not only from committing acts of waste, but also from alienating the properties in favour of third parties. The civil Court found that K acquired life-estate under the settlement deed executed by his wife conferring vested remainder in the respondent and on its basis the respondent was declared entitled to an injunction against K who was prohibited not only from committing acts of waste, but also from alienating the properties in favour of third parties. The later suit of injunction to which the appellant was a party also binds the appellant. Therefore, even the decree founded on equitable relief in which the issue was directly and substantially in issue and decided, and attained finality would operate as resjudicata in a subsequent suit based on title where the same issue directly and substantially arises between the parties. The appellant is a person deriving title from K who was a party in the former suit is also hit by the doctrine of lis pendens under Section 52 of the Transfer of Property Act. " (Emphasis supplied ). ( 10 ) THE first defendant resisted the claim by oral evidence showing that Muniyamma had tethered about 30 buffaloes, doing lucrative milk vending business and was having independent source of income. The witnesses examined by the first defendant also testify to the fact that Muniyamma sold her jewelry while purchasing item No. 1 of the A schedule under Ex. P. 36. From the evidence, it is pointed out that the propositus Balappa in the partition with his brothers under Ex. P. 3 got a residential house and a vacant plot. Further he was fastened with the liability to the family debt of Rs. 1000/ -. Balappa was employed as a carpenter in Binny Mill getting a salary of Rs. 60/- per month and was ailing from cancer quite some time prior to his death on 27. 1. 1955. The residential house was used for the residence of the family, the vacant plot did not fetch any income, as such Balappa had no financial capacity to lend money for purchase under Ex. P. 36. Therefore, argued that the finding of the trial court that property purchased under Ex. P. 36 is the self acquired property of Muniyanma is sound and proper. ( 11 ) BESIDES the oral evidence the counsel for the first defendant relied on Ex. P. 36. Therefore, argued that the finding of the trial court that property purchased under Ex. P. 36 is the self acquired property of Muniyanma is sound and proper. ( 11 ) BESIDES the oral evidence the counsel for the first defendant relied on Ex. D. 1 the deposition of the plaintiff recorded in HRC 717/1961 filed by Muniyamma on the file of I Munsiff Bangalore for evicting one of the tenants in item No. 1 of the A schedule. The plaintiff is examined as P. W. 4. In his deposition he admits that the item No. 1 of the A schedule is the self acquired property of his mother Muniyanmma. In view of the said admission it is argued that the plaintiff is estopped from setting up the claim that item NO. 1 of the A schedule is the joint family property. ( 12 ) ON the plea of resjudicata the counsel for the respondent submitted that the pleadings in O. S. No. 1804/66 are not produced. Only on the basis of judgment marked at Ex. P. 37 the plaintiff cannot successfully set up the plea of resjudicata. In support of the contention relied on the decision of the Supreme Court in SYED MOHD. SALIE LABBAI (DEAD) BY L. RS. AND OTHERS VS. MOHAMMED HANIFA (DEAD) BY L. RS. AND OTHERS, AIR 1976 SC 1569 at para 8, it is observed thus:"in the instant case according to the plaintiffs/respondents the identity of the subject-matter in the present suit is quite different from the one which was adjudicated upon in the suits which formed the basis of the previous litigation. In our opinion the best method to decide the question of resjudicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suits, and then to find out as to what had been decided by the judgments which operate as resjudicata. Unfortunately however in this case the pleadings of the suits instituted by the parties have not at all been filed and we have to rely upon the facts as mentioned in the judgments themselves. It is well settled that pleadings cannot be proved merely by recitals of the allegations mentioned in the judgment. We would also like to note what the High Court has said on the question of res judicata. It is well settled that pleadings cannot be proved merely by recitals of the allegations mentioned in the judgment. We would also like to note what the High Court has said on the question of res judicata. The High Court found that although the litigation between the parties lasted for a pretty long time it was never decided whether all or any of the suit properties constituted a public trust. Both the parties appear to have taken extreme stands but even despite the fact that the previous judgments contained an incidental finding that the mosque was a. public property and so was the burial ground, the effect of these findings was nullified in 1939 when the High Court held that even if the properties in dispute were the exclusive properties of the Labbais, this expression was not meant to indicate that they were their private properties. This, in our opinion, clearly shows that the public character of the wakf or of the mosque was never in issue. The High Court on this point found as follows:""we are therefore, of the view, that the issue as to whether the properties constituted a public trust having been never raised and decided between the parties in any of the prior suits. O. S. No. 9 of 1956 on that question was not barred by res judicata. The finding of the Court below in this regard is affirmed. "the trial Court had also negatived the plea of res judicata taken by the defendants. ( 13 ) THE Supreme Court in Sajjadanashin Sayed Md. B. E. Edr. (D) By L. Rs. , Vs. Musa Dadabhai Ummer And Others, AIR 2000 SC 1238 At Para 18 the following observations are made:"in India, Mulla has referred to similar tests (Mulla, 15th Ed. P. 104 ). The learned author says: A matter in respect of which relief is claimed in an earlier suit can be said to be generally a matter directly and substantially in issue but it does not mean that if the matter is one in respect of which no relief is sought it is not directly or substantially in issue. It may or may not be. ""it is possible that it was directly and substantially in issue and it may also be possible that it was only collaterally or incidentally in issue, depending upon the facts of the case. It may or may not be. ""it is possible that it was directly and substantially in issue and it may also be possible that it was only collaterally or incidentally in issue, depending upon the facts of the case. The question arises as to what is the test for deciding into which category a case falls? One test is that if the issue was necessary to be decided for adjudicating on the principal issue and was decided, it would have to be treated as directly and substantially in issue are if it is clear that the judgment was in fact based upon that decision, then it would 1. resjudicata in a latter case, [mulla, p. 104]. One has to examine the plaint, the written statement, the issues and the judgment to find out if the matter was directly and substantially in issue Isher Singh v. Sarwan Singh, AIR 1965 SC 948 Mohd. S. Labbai v. Mohd. Hanifa, AIR 1965 SC 1559 I sic] ). We are of the view that the above summary in Mulla is a correct statement of the law. " ( 14 ) IN para 25 the ratio laid down in Sulochanamma s case AIR 1994 is approved in the following observations:"before parting with this point, we would like to refer to two more rulings. In Sulochana Aroma v, Narayanan Nair, 1994) 2 SCC 14: ( AIR 1994 SC 152 ), this Court held that a finding as to title given in an earlier injunction suit would be resjudicata in a subsequent suit on title. On the other hand, the Madras High Court, in Selliamman Ayyanar Uthiva Somasundareswarar Temple v. Rajanga, AIR 1965 Madras 355, held (see para 8 therein) that the previous suit was only for injunction relating to the crops. May be, the question of title was decided, though not raised in the plaint. In the latter suit on title, the finding in the earlier suit on title would not be resjudicata as the earlier suit was concerned only with a possessory right. These two decisions, in our opinion/ cannot be treated as being contrary to each other but should be understood in the context of the tests referred to above. Each of them can perhaps be treated as correct, if they are understood in the light of the tests stated above. These two decisions, in our opinion/ cannot be treated as being contrary to each other but should be understood in the context of the tests referred to above. Each of them can perhaps be treated as correct, if they are understood in the light of the tests stated above. in the first case decided by this Court, it is to be assumed that the tests above referred to were satisfied for holding that the finding as to possession was substantially rested on title upon which a finding waft felt necessary and in the latter case decided by the Madras High Court, it must be assumed that the tests were not satisfied. As stated in Mulla, it all depends on the facts of each case and whether the finding as to title was treated as necessary for grant of an injunction in the earlier suit and was also the substantive basis for grant of injunction. In this context, we may refer to Corpus Juris Secundum (Vol. 50, para 735 page 229) where a similar aspect in respect to findings on possession and incidental findings on title were dealt with. It is stated :""where title to property is the basis of the right of possession, a decision on the question of possession is res judlcata on the question of title to the extent that adjudication of title was essential to the judgment; but where the question of right to possession was the only issue actually or necessarily involved, the judgment is not conclusive on the question of ownership or title. " ( 15 ) SMT. Muniyamma in O. S. No. 1804/66 filed a suit for permanent injunction against the plaintiff herein not to collect the rents from line tenants in item NO. 1 of the A schedule property. The tenant was also a party to the suit. The judgment in O. S. No. 1804/66 marked at Ex. P. 37. According to the facts and disputed contentions set out in the judgment, Muniyamma grounded her claim on the basis of exclusive title to the property that it is the self acquired property and that the defendants have no right to collect rents. The first defendant in that suit (plaintiff herein) takes up the contention that the suit property was purchased from out of the joint family funds and that Muniyarama has no exclusive right over the property. The first defendant in that suit (plaintiff herein) takes up the contention that the suit property was purchased from out of the joint family funds and that Muniyarama has no exclusive right over the property. The court held that the property is not the exclusive property of Muniyamma and she has failed to prove that she applied her personal funds by sale of jewelry for purchase of the property. It is held that Muniyamma has no exclusive right to collect rents from the tenants and dismissed the suit. The court made a passing observation that the suit for bare injunction without declaratory relief is not maintainable. No appeal is filed. The judgment and decree in the suit has become final and conclusive between the parties. ( 16 ) IN view of the observations made in O. S. 1804/66, Muniyamma later on filed a suit in O. S. No. 136/69 on the file of Civil Judge Bangalore seeking relief of declaration of title with consequential relief in respect of item No. 1 of the A schedule. The plaint in that suit came to be rejected for non- payment of court fee. The order has become final. Now in this case, the first defendant claiming through Muniyamma sets up the defence that the item No. 1 of the A schedule property is the self- acquired property of Muniyamma and that the plaintiff is not entitled to anything more than 4 share. ( 17 ) THE Supreme Court AIR 1976, 1569 has laid down that the pleadings and issues framed in the previous litigation have to be produced in order to prove resjudicata. The facts reveal that the parties had not produced the pleadings of the earlier litigations, only judgments were produced. The High court and as well the Supreme Court even in the absence of the production of pleadings, extensively referred to the facts and evidence discussed in the earlier judgments in coming to the conclusion that the fact whether the mosque and the burial ground are wakf property was not directly in issue and does not constitute resjudicata. There is no ratio laid down in AIR 1976 S. C. 1569 that under all circumstances the court is prevented front looking into the facts and evidence narrated in the judgment as secondary evidence to find out the applicability of resjudicata. There is no ratio laid down in AIR 1976 S. C. 1569 that under all circumstances the court is prevented front looking into the facts and evidence narrated in the judgment as secondary evidence to find out the applicability of resjudicata. ( 18 ) IT is necessary that primarily the pleadings have to be perused to find out the contentious facts and issues between the parties in the previous proceedings. In the absence of the pleadings as secondary evidence it is permissible to find out from the facts stated in the judgment, to see whether the issues framed correctly reflect the contentious facts. The facts stated in the judgment in O. S. No. 1804/1966 discloses that Muniyamma as a plaintiff has asserted her exclusive right to collect the rents on the ground that the property under Ex. P. 36 is her self acquired property. The defendant (plaintiff herein) specifically denied the claim of Muniyamma that it is her exclusive property and she has exclusive right to collect the rents. In that context the trial court had framed the following issues:- 1. Whether the plaintiff is entitled to collect rents from the tenants in the suit property? 2. Whether the plaintiff is entitled to the permanent injunction as claimed? 3. To what relief is the plaintiff entitled? ( 19 ) FOR answering issue No. 1 and 2 it was necessary for the court to incidentally go into the question of title set up by the plaintiff Muniyamma. It was the categorical case of Muniyamma in her evidence that she paid the sale consideration of Rs. 5000/- by sale of her gold jewelry to one Vittal Rao. The said witness was not examined. Except the self-serving oral testimony, Muniyamma had not produced any substantial evidence to prove that she had paid the consideration by sale of gold jewelry. IN the context of the disputed contentions and evidence, the court gave a categorical finding that Muniyamma has failed to prove that she is the exclusive owner of the suit property and has exclusive right to collect rents. Accordingly dismissed the suit. The finding given on issues NO. 1 and 2, operate as resjudicata, in view of the ruling of the Supreme Court in Sulochanamma s case, AIR 1994. The said ratio is approved and reiterated by the Supreme court in Sajjeda Niashan Syed Mohammed case, AIR 2000 SC 1238 . Accordingly dismissed the suit. The finding given on issues NO. 1 and 2, operate as resjudicata, in view of the ruling of the Supreme Court in Sulochanamma s case, AIR 1994. The said ratio is approved and reiterated by the Supreme court in Sajjeda Niashan Syed Mohammed case, AIR 2000 SC 1238 . Then it is held conclusively that Muniyamma has no exclusive title over item NO. 1 of the A schedule in O. S. No. 1804/66, it is impermissible on the ground, of resjudicata for the first defendant to again contend that item No. 1 of the A schedule and C schedule properties are the exclusive properties of Muniyamna. ( 20 ) APART from the plea of resjudicata, the first defendant has failed to establish that item NO. 1 of the A schedule purchased under Ex. P. 36 is the self acquired property of Muniyamma. The evidence that Muniyamma had tethered buffaloes and was getting income from milk vending business is totally irrelevant. The evidence of D. W. 3 Krishna Reddy totally contradicts the claim set up by Muniyamna in O. S. NO. 1804/66. According to D. W. 3 he advanced loan of Rs. 5000/- to Muniyamma for purchase of property under Ex,p. 36. Whereas Muniyamma in O. S. No. IS04/66 states that she sold her gold jewelry and paid the initial sale consideration of Rs. 5000/ -. ( 21 ) UNDER the Hindu law, it is well settled proposition that there is no presumption that the property standing in the individual name of the female member of a joint family is a joint family property. Unlike, in the case of junior coparceners, it is not suffice to establish the existence of nucleus and sufficient income of the joint family for invoking the presumption. In the case of property standing in the name of the female member, the person alleging that such property is the joint family property should not only prove the existence of sufficient nucleus and income of the joint family but also should establish that the family funds has been utilised for the purchase property in the name of the female member. ( 22 ) THE defendant D. W. I in her evidence admits that her father was getting salary of Rs. 140/- and was earning Rs. 400-500 from private carpentry works. The Joint family tenements were getting rents of Rs. ( 22 ) THE defendant D. W. I in her evidence admits that her father was getting salary of Rs. 140/- and was earning Rs. 400-500 from private carpentry works. The Joint family tenements were getting rents of Rs. 55/- p. m. The vacant plot in Padarayanapura leased for fuel depot getting rent of Rs. 55/- p. m. and denies the suggestion that it was fetching Rs. 85/- p. m. Therefore, from the admitted evidence, and in the light of the facts and probabilities, it could be said that the father of the plaintiff was substantially earning more than to meet the basic needs of the family and was left with a surplus income of Rs. 100/- to ISO/- p. m. The loan liability assigned to the share of the plaintiffs father was around Rs. 1000/-, with a surplus income perhaps within a year he could have liquidated the loan and thereafter the surplus earnings would have gone on accumulating from year to year. ( 23 ) THE property at the time of purchase under Ex. P. 3 6 was subject to mortgage of Rs. 20000/ -. A sum of Rs. 5000/- was paid to the vendor, the mortgage liability of Rs. 20000/- was adjusted towards sale consideration on the condition that the vendee under Ex. P. 36 shall discharge the mortgage loan. Both Muniyamma and plaintiff borrowed the loan of Rs. 10000/- jointly from the Co-operative Bank to discharge the mortgage loan. The discharge receipt produced at Ex. 28 discloses Joint repayment by Muniyamma and the plaintiff to the Co-operative Bank. The item NO. 1 of the A and C were getting lucrative rents, therefore, from the said income there is easy possibility of discharging the loan liabilities incurred for purchase under Ex. P. 36. ( 24 ) ACCORDING to the evidence of D. W. I, about one and half years prior to the purchase under Ex. P. 36 her father was suffering from throat cancer and he was being treated at Bombay. The plaintiff had just then emerged out of the minority. In the context of social conditions of the times, it is natural to expect that the mother who is matured and worldly-wise should have acted as de-facto manager and purchased the properties under Ex. P,36 in her name from out of the income of the joint family. The plaintiff had just then emerged out of the minority. In the context of social conditions of the times, it is natural to expect that the mother who is matured and worldly-wise should have acted as de-facto manager and purchased the properties under Ex. P,36 in her name from out of the income of the joint family. ( 25 ) IN view of the categorical evidence about the existence of the joint family properties and the funds, it is more probable to hold that the family funds are utilised for the purchase under Ex. P. 36. The facts and evidence that Muniyamma was earning money from milk vending business is totally irrelevant for consideration because of the categorical version of Muniyamma in O. S. No. 1804/66, that she purchased the property by selling her gold jewelry. It was never the case of Muniyamma that from the income from milk vending business she purchased the property. ( 26 ) IN O. S. NO. 1804/66 the claim of exclusive title of Muniyamma is rejected. The findings on issue No. 1 and 2 in that suit operate as resjudicata. Even otherwise, the admissions in the oral evidence of D. W. I, probablises the theory of purchase of the property from joint family funds. The first defendant in the suit has failed to prove that the purchase under Ex. P. 36 is a self acquired property or Muniyamma. ( 27 ) NO doubt, plaintiff has admitted in his deposition at Ex. D. I in H. R. C. 717/61 that the property is the self-acquired property of Muniyamma. An admission is evidence, but the maker can explain away as to under what circumstances he made the statement to get over the rigor of estopple. It is explained that there was absolute harmony between the plaintiff and his mother Muniyamma, formally the evidence was given in support of the pleadings set out in the HRC case only to suit the convenience for seeking eviction. The statement made in the evidence does not reflect the true state of facts about the character of property, appears to be a tenable argument. The contents of Ex. D. I cannot estop plaintiff to prove that the suit property under Ex. P. 36 is the joint family property. In view of the reasons and discussions made above, the finding of the trial court that the purchase under Ex. The contents of Ex. D. I cannot estop plaintiff to prove that the suit property under Ex. P. 36 is the joint family property. In view of the reasons and discussions made above, the finding of the trial court that the purchase under Ex. P. 36 is the exclusive property of Muniyamna is bad in law, contrary to evidence. ( 28 ) ITEM No. 2 of the W schedule a site allotted by CITB under Ex. P. 112 is in the name of Muniyamma. Of course, the evidence is placed by the first defendant to show that the CITB gave a site under Ex. P. 112 as an exchange for acquiring the revenue site. As per Ex. D. 12 the revenue site purchased by Muniyamma in the name of her minor daughter Bangaramma. That revenue site came to be acquired. Therefore, it is argued that a site given in exchange to Muniyamma should necessarily go to the benefit of first defendant. I find no merit in the contention. It may be a fact that Muniyamma purchased revenue site in the name of the first defendant when she was a minor and it may be with an intention of giving benefit to the first defendant exclusively. But at the time of obtaining the lease cum sale deed Muniyamma takes the property in her name. If she had continued intention of benefiting the first defendant exclusively, nothing had prevented Muniyamma from obtaining the lease cum sale deed as a guardian of the first defendant and in her name. Mere intention of Muniyamma at the time of purchase of a revenue site cannot be a legal basis to hold that the lease cum sale deed obtained under Ex. P. 112 should go to the exclusive benefit of first defendant, unless the document states so. Otherwise as a legal consequence, the property should be held as self acquired property of Muniyamma. There is no evidence to show that the family funds were applied for obtaining lease cum sale deed under Ex. D. 112. ( 29 ) THE propositus Balappa died in the year 1955 prior to Hindu Succession Act and when the Mysore Act of 1933 was in force. According to the ruling of this court in Smt. Puttamma and Others Vs. H. K. Ramegowda reported in ILR 2004 at 1930. D. 112. ( 29 ) THE propositus Balappa died in the year 1955 prior to Hindu Succession Act and when the Mysore Act of 1933 was in force. According to the ruling of this court in Smt. Puttamma and Others Vs. H. K. Ramegowda reported in ILR 2004 at 1930. Under Section 8 of the 1933 Act Muniyamma was entitled to half that of a son in the ancestral estate, the first defendant as an unmarried daughter entitled to 1/4th that of a son in the ancestral estate. The notional share of propositus Balappa should have to devolve upon the plaintiff by way of survivorship, since Balappa died prior to passing of Hindu Successions Act. Muniyamma would be entitled to 2/7th share in item No. 1 of the A schedule and c schedule properties. The first defendant as unmarried daughter would be entitled to l/7th share in the ancestral estate as per Section 8 of Mysore Act 1933. Since Muniyamma is dead, her share should be equally divided between the plaintiff and first defendant. The first defendant would be entitled to 2/7th share and the plaintiff would be entitled to 5/7th share. ( 30 ) IN the item No. 2 of the A schedule property, the first defendant and the plaintiff would be entitled to equal share since it is held to be the exclusive property of Muniyamma. The third defendant is the purchaser of item NO. 2 of the A schedule property during the pendency of the suit. The third defendant can work out the remedy in the final decree proceedings for seeking equitable allotment of the property to the share of first defendant and in turn to her. Accordingly, the judgment and decree of the trial court is set aside. The appeal is allowed with costs in the terms indicated above and preliminary decree to be drawn. --- *** --- .